Zeitschrift des Max-Planck-Instituts für Rechtsgeschichte und Rechtstheorie

Journal of the Max Planck Institute for Legal History and Legal Theory
RechtsRg
geschichte

Rechtsgeschichte
Legal History
www.lhlt.mpg.de

http://www.rg-rechtsgeschichte.de/rg32 Rg 32 2024 144 – 158

Zitiervorschlag: Rechtsgeschichte – Legal History Rg 32 (2024)
http://dx.doi.org/10.12946/rg32/144-158

Andrew James Harding *

The Diffusion of Common Law in the

Straits Settlements: »The Six Widows’ Case«
and the Rout of Custom

* National University of Singapore, lawajh@nus.edu.sg

Dieser Beitrag steht unter einer Creative Commons Attribution 4.0 International License
 Abstract

This article uses a 1911 case from Singapore

(»the Six Widows’ case«) to discuss the issues
arising from the introduction of common law into
the Straits Settlements. It examines the reasoning
behind the introduction of common law, and how
common law dealt with its interface within the
Asian context, specifically with regard to Chinese
customary law. It discusses what was at stake in this
case, alternative approaches, and the debates the
case led to regarding Chinese marriages and family
law more generally. The addition of a case study on
undue influence in the law of contract leads to the
conclusion that judicial reasoning, common-law
style, is in general adequate to bridge the gap
between law and society.

Keywords: legal transplants, common law,

Chinese customary law, British Straits Settlements,
polygamy
□
×
Rg 32 2024

Andrew James Harding

The Diffusion of Common Law in the

Straits Settlements: »The Six Widows’ Case«
and the Rout of Custom
Scholarly disagreement about legal transplanta- distribution of the intestate estate of a wealthy
tion continues to trouble academia. 1 But perhaps it Chinese man, Mr Choo, who died in Singapore,
is time to put aside a debate that often seems to be on which estate no less than six women claimed a
reduced to quibbles regarding the meaning of share as having been married to him. The case
words such as »rule« and »transplant«, and even presents in microcosm several of the difficult issues
»law« itself, in favour of examination of the extra- of law and society arising in the process of diffu-
ordinary fact of legal diffusion. 2 Diffusion contin- sion of the common law across the British empire,
ues in ever more complex and extensive ways, encountering here, in an Asian context, potential
whatever reservations may be expressed by legal conflict with customary law. These issues still
theorists. 3 It is a decisive criticism of legal trans- remain in somewhat different manifestations more
plant theory that neither the adherents of legal than 110 years later, and almost 60 years after
transplants nor their opponents take cognisance of Singapore became an independent, sovereign re-
what the present author has termed »the real world public. Through an understanding of instances
of legal diffusion«. It is as though a profound such as this, we can perhaps better understand
understanding of this large and complex matter the notion of law in its social context as well as
can be obtained from the comfort of a university the possibility, limits, and methods of adaptation as
library. 4 It is easy to use high-flown expressions to part of the process of legal diffusion. The overall
stake out a position, but before we conclude that, conclusion is that, despite these difficulties and
for example, legal transplantation is easy (Wat- problematical contexts, and despite the need for
son 5) or impossible (Legrand 6), an attempt needs legislation, common law reasoning ultimately did
to be made to discover the actual facts. And here engage successfully with the societal context of the
legal history provides much food for thought and Straits Settlements.
experience to be dissected, as there is an extended The real interest of these issues and the case
record to look at, in which longer-term outcomes study relates to the interface between common law
can be examined. The diffusion of law is therefore a on the one hand and the Asian context on the
highly suitable area for fruitful empirical research, other. »Asian context« is used here to mean what-
hopefully unclouded either by the ideology or the ever law was previously established prior to the
terminological obfuscation that tends to bedevil arrival of common law: customary law; religious
the subject of legal transplantation. 7 belief; and simply the social facts pertaining to the
In this spirit – that of seeking truth from facts in various Asian communities coming under British
a bottom-up rather than a top-down way – this rule, including the very diversity of the societies
article offers a study of common law diffusion they formed.
revolving principally around a famous Singapore In order the understand the Six Widows’ case
case. This case dating from 1911, in common and its implications, it is necessary first to
parlance spectacularly named »the Six Widows’ sketch some historical background, so that we
case«, but referred to in the law reports as Re the can see how the issues came up in the way they
Estate of Choo Eng Choon, Deceased, 8 concerned the did.

1 Harding (2019). 7 Of course, these two areas overlap 8 Re Estate of Choo Eng Choon, Deceased
2 Ibid. considerably, but the concept [1911] 12 Straits Settlements Law
3 Legrand (1997) 111; of »legal diffusion« seems to me Reports 120.
Humphreys (2010). to go to the root of the matter
4 Harding (2019) 1. (how does law change?) in
5 Watson (1993). a way that »legal transplants«
6 Legrand (1997) 111. does not.

144 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

I. Common Law Reception in Singapore reception or application of English law. Local

case law, following the landmark 1858 case of
Sir Thomas Stamford Raffles arrived in Singa- R v Willans in Penang, 15 had adopted the theory
pore in 1819 to commence the construction of a that English law was received via this Charter.
new British colony, having reached an arrange- »English law« here meant the common law; the
ment with the Sultan of Johor under which the principles of equity; and pre-Charter English stat-
British would establish a trading post on the largely utes, so far as they were of general application. The
uninhabited island. 9 The colony operated initially last is of special importance, as we shall see, in the
under a minimal regulatory legal framework (a context of the Six Widows’ case.
situation referred to, in a purely technical way, as In R v Willans the judge, Sir Peter Benson
»legal chaos«). 10 In 1826 a charter was issued under Maxwell, was compelled to set out a justification
parliamentary authority by King George IV, which for the view that the Charter had resulted in a
is referred to universally as the Second Charter of reception of common law in the Straits Settle-
Justice. 11 This Charter provided for the establish- ments. The case revolved around the matter of
ment of a Court of Judicature for Singapore, interpreting the vague term »justice and right«,
Penang and Malacca. 12 These were the three Brit- and Maxwell reached his conclusion according to
ish colonies on the Malay peninsula, from 1826 the following reasoning.
referred to as the »Straits Settlements«. 13 We can First, the English colonists in Penang had not
note here that Penang had been ceded to Britain by carried »their laws as their birthright, to their new
the Sultan of Kedah in 1786, being essentially at homes«, as their presence was dependent on the
that point uninhabited, while Malacca had had a permission of the East India Company.
more complex history, passing from the Malacca Secondly, although Penang was part of the
rulers to the Portuguese, then the Dutch, and Sultanate of Kedah, it was more or less uninha-
eventually to the British in 1824. bited and there was therefore no de facto estab-
To summarise for present purposes the Charter, lished legal authority. 16 If there had been, it is clear
an extensive document of 76 pages: in criminal that legislation would have been required to re-
proceedings, the Court was to administer criminal place it with English law. The Islamic law of Kedah
justice as the courts did in England, with due was thus not applicable in Penang, and the judge
attention given to »the religions and manners of commented that it seemed »impossible to hold
the native inhabitants«. In civil proceedings, the that any Christian country could be presumed to
court was to give judgment and pass sentence adopt or tolerate such a system as its lex loci«. 17
according to »justice and right« (this phrase had Thirdly, as had been held as long ago as Calvin’s
also been used in the First Charter of Justice for Case in 1609, 18 »until certain laws are established,
Penang in 1807). 14 While the Charter did not the King by himself, and such Judges as he should
explicitly state that English law was to be applied appoint, should judge the inhabitants and their
in the Straits Settlements, it was generally assumed causes according to natural equity, in such sort as
to provide authority for some kind of a general Kings in ancient times did with their Kingdoms

9 See, further, Phang (2006); Tan 13 Penang (referred to as Prince of 14 Letters Patent Establishing a Court of
(2005) 27 ff. For a brief history of Wales’ Island) had been ceded by the Judicature in Penang, 25 March 1807.
judicial development in the Straits Sultan of Kedah in the same way as 15 (1858) 3 Kyshe 16.
Settlements, see Wee (1974) 53–55. Singapore had been ceded by the 16 See, further, Gopal (1983) xxv;
For a more comprehensive legal Ruler of Johor. Malacca had been contra, Phang (1986) civ.
history, see Braddell (1931). taken over from the Dutch in 1824. 17 (1858) 3 Kyshe 22. Nonetheless, what
10 Wee (1974) 53; Phang (2005) 8. This Penang and Malacca were folded into Maxwell deemed impossible is exactly
does not indicate that actual chaos the Federation of Malaya in 1948. what occurred in the Malay States a
prevailed, but merely that the That Federation became independent few decades later, as Muslim law was
administration of justice had no clear in 1957, and in 1963 Singapore joined established in those states.
jurisprudential basis. the federation along with North 18 (1608) 77 ER 377.
11 Phang (2006). Borneo (now Sabah) and Sarawak to
12 Letters Patent Establishing the Court form Malaysia under the Malaysia
of Judicature at Prince of Wales’ Is- Agreement 1963. On 9 August 1965
land, Singapore, and Malacca, in the Singapore left the federation to be-
East Indies, dated 27 November 1836. come an independent republic.

Andrew James Harding 145

Rg 32 2024

before any certain Municipal laws were given« decide according to the law of England. The
(emphasis added). whole of the Charter appears to me to support
Fourthly, English law was the only »natural this view. It gives the Court the powers of the
equity« known to English sovereigns and English Superior Courts of Law and Equity at West-
judges; and it fell under the Crown’s competence minster, to be exercised as far as circumstances
to introduce English law into the Settlement by admit, without stating or leaving any room for
Charter (as had been held in Campbell v Hall in presuming that it was intended that those
1774 19). powers should be exercised otherwise than in
Maxwell concluded his excursus on reception as the same manner and under the same rules and
follows: principles as they are exercised in England. The
classification of property into »real and person-
[T]he Charter does not declare, totidem verbis, al« of actions or »pleas,« into »real, personal, and
that that law [English law] shall be the territo- mixed,« and the power given to grant Probates
rial law of the Island; but all its leading provi- and Letters of Administrations, 21 shew that the
sions manifestly require, that justice shall be law of England was alone in contemplation.
administered according to it, and it alone. As to
Criminal law, its language is too explicit to What is especially important for the case study is
admit of doubt. It requires that the Court shall of course how this reasoning was supposed to affect
hear and determine indictments and offences, the non-European communities under British rule.
and give judgment thereupon, and award exe- Here Maxwell reasoned as follows [the italics are
cution thereof, and shall in all respects, admin- mine]:
ister Criminal Justice in such or the like manner
and form, or as nearly as the condition and In no part of the Straits’ Charters is mention
circumstances of the place and the persons will made of any other law than that of England; and
admit of, as in England. And I think it equally the silence is perhaps nowhere more remarkable
plain that English law was intended to be than in those passages which purport to adapt
applied in Civil Cases also. The Charter directs the administration of justice by an European
that the Court shall, in those Cases, »give and Court to the peculiar institutions of Asiatic
pass judgment and sentence according to Justice races. Where Ecclesiastical [i. e., family law]
and Right.« The »Justice and Right« 20 intended, jurisdiction is conferred on the Court, it is to
are clearly not those abstract notions respecting be exercised only so far as the religions, manners
that vague thing called natural equity, or the law and customs of the inhabitants admit. In the
of nature, which the Judge, or even the Sover- administration of oaths and of Criminal Justice,
eign may have formed in his own mind, but the also, and in framing process for carrying out the
justice and right of which the Sovereign is the orders of the Court, attention is to be had to the
source or dispenser. They are, in jurisprudence, religions, manners and usages of the native
mere synonyms for law, or at least only meas- inhabitants; but nowhere is it said that their laws
urable by it; and a direction in an English are to be attended to, not even in matters of
Charter to decide according to justice and right, contract and succession, 22 as in India. Indeed,
without expressly stating by what body of the provision respecting the framing of process
known law they shall be dispensed, and so to is expressly guarded by the provision that the
decide in a Country which has not already an prescribed adaptation to native opinions and
established body of law, is plainly a direction to usages shall go only »as far as the same can

19 (1774) 98 ER 1045. very important issue, differs from case law: Waghela Rajsanji v Shekh Maslu-
20 There are interesting questions, to case. The Magna Carta of 1215, din (1887) 14 Ind App 89, 96.
which I do not attempt to answer provides: »nulli rendemus, nulli nega- 21 In the context of the Six Widows’
here, whether another similar bimus aut differemus justitiam vel rec- case, this reference to succession is
formula – »justice, equity and good tum«; »justice and right« seems to be significant. And see In the Goods of Lao
conscience«, employed in many taken directly from this. As with Leong An, Deceased (1867) 1 SSLR 1.
British territories, is equivalent to »justice and right«, »justice, equity 22 Again, the reference to succession is
»justice and right«; and why the and good conscience« was ultimately significant.
formula, which one would think a interpreted as equivalent to English

146 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

consist with the due execution of the law and What, one wonders, were the Asian populations to
the attainment of substantial justice.« The ex- make of all this?
clusion of native law is also remarkable in the At yet another level, it might be objected here
Clause empowering the establishment of Small that it is simply too fussy to discover and analyse
debts’ Courts. Although it is provided that the jurisprudential justifications for the reception of
jurisdiction of those Courts may be ethnical English law in the Straits, given the pre-eminence
instead of local, if thought advisable, nothing of British power and ambition in the region, and
is said about applying native law to native Cases, the existing de facto situation. Of course, one
but it is merely required that the »administra- might say, the British introduced English law –
tion of justice« shall be adopted, so far as how could it be otherwise?
circumstances permit, to »the Religions, Man- Yet it is not at all obvious, on reflection, that
ners and Customs,« of the native inhabitants, British rule did entail common law reception, and
while the Rules of Practice are to conform, as it could indeed have been otherwise. The First
nearly as may be to the Rules of the English Charter of Justice of 1807, which established the
Courts of Request. It may be said that with first court in Penang, also directed the court, as we
respect to at least two classes of Orientals, have seen, to »give and pass judgment and sentence
Mahomedans and Hindoos, their laws are part according to justice and right«. The first Recorder
of their religions, and that the Charter includes of Penang, Sir Edmund Stanley, thought (directly
the former when it mentions the latter. This contrary, we may note, to Maxwell’s judgment)
might be so, if the Charter were a Mahomedan that this Charter secured »to all native subjects the
or Hindoo instrument, but law and religion are free exercise of their religion, indulges them in all
too distinct in their nature and to English their prejudices, and pays the most scrupulous
apprehension, to be treated otherwise than as attention to their ancient customs, usages and
distinct in the construction of an English Char- habits« [again, emphasis added]. 24 In a similar
ter. vein, the government in London issued this in-
struction to the first Lieutenant-Governor of Pe-
At one level this judgment takes one’s breath nang in 1801: »The laws of the different peoples
away. How exactly did we start with »justice and and tribes of which the inhabitants consist, tem-
right« and finish up with English law? How could pered by such parts of the British law, as are of
we seriously conclude, given the express terms of universal application, being founded on the prin-
the Charter, which mention English law only in ciples of natural justice, shall constitute the rules of
relation to criminal justice, that the law of England decision in the courts.« Note here the order of
was alone in contemplation, and that it is nowhere precedence. The instruction amounts to saying,
said that their (the Asian populations’) laws should »first, apply their law, modified by ours so far as
be attended to? it is generally applicable«. Again, this is directly
At another level the judgment raises difficult contradicted by Maxwell. In the Malay states the
questions about the precise extent of application of reception of common law was much more limited,
English law, or exceptions thereto, and the reasons much later, and much more gradual, and did not
therefor. One is put in mind of Frederick Pollock’s cover matters dealt with by Muslim family law, due
critique that »bland following of English prece- to the underlying constitutional fact of indirect
dents according to the letter can only have the rule. 25 A general reception of English law in
effect of reducing the estimation of the common Malaya was enacted only in 1937. 26
law by intelligent Indians to the level of its more Moreover, in the immediately neighbouring
technical and less fruitful portions and making territory, the Dutch East Indies, the approach
those portions appear, if possible, more inscrutable adopted was entirely the opposite of Maxwell’s
to Indian than they do to English lay suitors«. 23 theory and more in line with Stanley’s. This ap-

23 Pollock (1912) 92. 25 Harding (2021) ch. 1.

24 Speech explaining the 1807 Charter 26 Civil Law Enactment 1937
upon its proclamation at the opening (FMS), s. 2.
of the new court: Braddell (1931)
70–71.

Andrew James Harding 147

Rg 32 2024

proach was based on the concept of »law popula- 18th century. 31 And Muslim personal law was
tions« 27 – in other words the very application of applied to Muslims in the Straits Settlements, as
»native law to native cases«, and »attention to« the we shall see. Nor does it mean that Dutch legal
laws of the inhabitants, that Maxwell rejected in- policy precluded applying some laws to everyone
R v Willans. Dutch policy classified the inhabitants irrespective of the »manners and religions« of the
in three different ways. inhabitants: the Dutch gradually brought more
and more people under the Dutch code, and every-
i) »Natives«, i. e., Indonesians, were governed, one under the criminal code. 32 The Chinese were
according to their location, by no less than brought under the Dutch civil code for marriage
19 different varieties of adat (customary purposes as early as 1925.
law), as identified by Cornelis van Vollen- Nonetheless, the assumption that common law
hoven’s adatrecht school in Leiden. 28 was somehow naturally the general law of the
ii) Those approximated to the Dutch them- Straits Settlements is a strikingly different starting
selves, who came under the civil code (i. e., point from the Dutch assumption that application
those Indonesians who adopted a Western of their own law was restricted to Europeans or
or urban lifestyle, or those who came from their legal equivalents. To put the distinction very
countries with a civil code similar to the crudely, Dutch legal policy expressly recognised
Dutch, such as Germans or Japanese, or its legal pluralism, whereas British legal policy ex-
common law equivalent, such as British and pressly did not. Why this distinction came about
Americans). 29 is an interesting question lying far beyond the
iii) »Foreign orientals«, who were dealt with scope of this paper. But it was in general part of
according to their own law. Thus Chinese British policy and the ideology of empire that
were dealt with under Chinese custom, and living under British justice was a boon. 33
Arabs under Islamic law. If the Six Widows’ A further possibility was to regard »justice and
case had been decided in the Dutch East right« as referring to due execution of the existing
Indies at a similar date, it would have been law. While it was true that »existing law« would be
dealt with under Chinese customary law. 30 hard to discover in Singapore and Penang, given
As we shall see, this was not possible in the the prevailing legal standards of the time that, as
Straits Settlements. Maxwell explained, distinguished law from reli-
gion, Malacca had been under Dutch law until the
I have presented the distinction between the latter was summarily replaced by English law. The
British and Dutch theories perhaps more sharply interpretation suggested here was actually rejected
than a consideration of development over a longer in the earlier case of Rodyk v Williamson. 34
span of time would warrant. The distinction does Whatever the arguments, Maxwell’s judgment
not mean that common-law theory always pre- ensured in effect that from 1826 until the present
cluded decisions according to the law of the parties day, Singapore 35 has been under the aegis of the
involved; in fact, it had, for example, recognised common law, and despite many differences from
polygamy amongst Muslims and Hindus since the English law as it now stands (actually fewer, one

27 Lev (1985). It should be understood statements in the text were true as at Abdullah) applied English law rather
here that the law-populations 1911, but also the position also than Dutch law to the widow of a
approach, while seeming more changed over time. Dutchman who died intestate in Ma-
emollient than common-law recep- 28 Bedner (2021); see, further, Harding lacca after it came under British con-
tion in allowing each community its (2002) 35. trol, holding that the 1826 Charter
»own« law, is nonetheless open to the 29 Lev (1965). had received English law in Malacca.
criticism that it entrenched an ethnic 30 Coppel (1999). 35 Penang and Malacca became part of
hierarchy. The common law, despite 31 Scrimshire v Scrimshire (1752) 2 Hag the Federation of Malaya in 1948; the
its lack (as it turned out) of scrupu- Con 395. common law continues to be appli-
lous attention to the laws and 32 Cribb (2020). cable there under the terms of the
customs of the Asian populations, at 33 Lino (2018). Civil Law Act 1956 (Federation of
least had the merit of applying the 34 Noted in: In the Goods of Abdullah 2 Malaya), as with the rest of
law equally, or in principle equally, to Ky Ec 8. The judgment, dated 1834, Malaysia.
all residents of the Straits Settlements. has not survived, but it seems Sir
It should also be understood that the Benjamin Malkin (the judge also in

148 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

might say, than in the case of the United States), Chinese man who at the time had only children
Singapore can be legitimately referred to, and re- adopted under Chinese custom, and who had no
gards itself, as a member of the common-law family. subsequent natural children, meant »natural, legit-
Finally, under this section, it is relevant to imate child«. In order to reach this quite bizarre
inquire how seriously the English judges took the result the judge was compelled to point out that
»scrupulous attention« issue in terms of modifying »the deceased being 57 years of age and his wife at
the application of English law. After all, Maxwell that time 42 years, one cannot exclude the possi-
himself (modifying somewhat his stance in bility of a child being born to them being in the
R v Willans) stated in a later case: contemplation of the testator when he made his
will and this even though at that time they had
In this Colony, so much of the law of England as been married for 20 years without issue«. It is hard
was in existence when it was imported here, and to imagine a clearer case of Pollock’s »bland fol-
as is of general policy, and adapted to the lowing of English precedents«.
condition and wants of the inhabitants, is the The conclusion one is forced to is that the
law of the land; and further, that law is subject, »scrupulous attention« argument was never taken
in its application to the various alien races seriously, even in matters that did not impact in the
established here, to such modifications as are slightest on land and commercial issues, which
necessary to prevent it from operating unjustly presumably propelled the reception of English
and oppressively on them. Thus in questions of law in the first place. A general reception of
marriage and divorce, it would be impossible to English law, however, could surely only be justified
apply our law to Mohomedans, Hindoos, and by taking seriously, in the family and succession
Buddhists, without the most absurd and intol- context, the ostensible intention of modifying
erable consequences, and it is therefore held English law where it would act oppressively or
inapplicable to them. 36 cause hardship.

Yet repeatedly when it came down to cases

invoking these very ideas, the judges refused to II. The Six Widows’ Case
show the kind of flexibility that we will see, in a
rare glimpse, in the Six Widows’ case itself. It lies In light of all these arguments and facts of legal
beyond the scope of this article to examine these history, we can now look in detail at the case itself.
cases in any detail, but a couple of examples will Re Estate of Choo Eng Choon, Deceased 39 is a deci-
suffice. In the very case just cited Maxwell refused sion of the Supreme Court of the Straits Settle-
to allow charitable status to a bequest for Chinese ments, affirmed on appeal by the appeal division of
ancestor worship, which would have exempted it that court in 1911.
from the English rule against perpetuities. 37 This Mr Choo was a banking comprador (a typical
was on the basis that ancestor-worship contained profession for Straits Chinese who became wealthy,
no element of public benefit or religion, there comparable to contemporary foreign-investment
being no invocation of a deity. From the perspec- consultants), who died intestate in Singapore,
tive of Chinese culture and belief, the decision is leaving a large estate. Six women came forward
oppressive in adopting a very English view of what to claim that they were his widows, and so entitled
constitutes religious belief, and the rule against to a share of the estate under the Statute of
perpetuities thereby attracted, is surely, to use Distribution, an English statute passed as long
Pollock’s term, just about the most »inscrutable« ago as 1670. This statute had already been held to
rule that English law ever invented. be applicable in the Straits Settlements, 40 as one of
In another case 38 the judge held that the word the statutes of general application forming part of
»child« used in the Chinese-language will of a the corpus of common law in 1826 (as described

36 Choa Choon Neoh v Spottiswoode 39 Re Estate of Choo Eng Choon [1911] 12 recognised and the wives’ share de-
(1869) 1 Ky 216, 221. Straits Settlements Law Reports 120. termined under the statute.
37 See, further, Chung (2014). 40 In the Goods of Lao Leong An, Deceased,
38 Re Lam Ciee Tong (Deceased) (1949) (1867) 1 SSLR 1. See above n. 21 in
Malayan Law Journal 1. which Muslim polygamy had been

Andrew James Harding 149

Rg 32 2024

above). The statute provided that a third of a male Chinese custom, but it will be recalled from the
intestate’s estate should go to his wife.The problem discussion of R v Willans above that the prevailing
was that the statute, passed on the assumption of a system of law did not engage with legal pluralism,
monogamous Christian marriage system, clearly and according to precedents the case had to be
envisaged a single wife; but wealthy Chinese men decided according to English law. There remained,
like Mr Choo often had several wives, as was however, the possibility of moderating the effect of
allowed by Chinese custom. English law on the parties, as was also stated in R v
The registrar at first instance decided that one of Willans and in the 1826 Charter. While English law
the women was the deceased’s principal wife (tsai) had long recognised polygamy in cases of foreign
and three others were inferior or secondary wives parties who adhered to a polygamous marriage
(tsip), while the remaining two women were system, 44 the problem was that it did not recognise
judged not to have been married to Mr Choo at a status lying somewhere between a wife and a
all (one went through no ceremony and the other mere concubine – a woman was, under the Statute
went through a ceremony for a primary wife, but of Distribution, either a wife or not a wife. 45
that marriage was thereby bigamous). The distinc- Accordingly, the four women in question were
tion between primary and secondary wives is a all regarded as wives under the applicable law,
well-attested aspect of Chinese customary law, in but there was no obvious means of distinguishing,
which the primary wife has far higher status than in monetary terms at least, between a primary wife
secondary wives. 41 The decision was appealed on and a secondary wife. As Acting Chief Justice Law
the ground that polygamy is not recognised in put it, »legally their position more nearly resembles
Chinese customary law, and should not be recog- that of a wife where polygamy is allowed than it
nised in any event by the court. resembles anything else«. 46 The four women were
Chinese law being foreign law in a British court, thus awarded equal shares in the »wife’s« one third
its ascertainment was a matter of fact, not law, and of the estate. On further appeal, a bench of three
therefore subject to potentially conflicting evi- judges decided (by two to one, with a dissenting
dence. 42 The appellants sought to challenge an judgment 47) to uphold the Acting Chief Justice’s
earlier case of 1867, in which Maxwell himself decision.
had granted to a secondary wife a share in the The case highlights the many possibilities pre-
intestate estate of a Chinese man. 43 The court sented by the interface of common law and Asian
accordingly heard conflicting expert testimony on context as discussed earlier. One comment on the
Chinese law, notably from the Chinese Consul- outcome by Professor Leong Wai Kum is that it
General to Singapore, who asserted that polygamy represents neither common law nor Chinese law,
was not permitted under Chinese law, and that but is an odd species of Eurasian law. 48 Kenneth
»secondary wives« were concubines taken infor- Wee offers a similar view. Citing the fact that the
mally. As we shall see, conflicting legal opinion on case also decided that a man could not take on a
Chinese marriages was an issue that virtually drove second primary wife, but there was no limit on
the courts in the Straits Settlements to distraction. him taking secondary wives, which was inconsis-
On appeal the Chief Justice recognised polygamy tent with equal treatment, he concludes that »it
and the status of secondary wives as a matter of was, on the whole, a queer marriage of Chinese

41 Wee (1974) 66. 46 12 Straits Settlements Law Reports domiciled is married according to the
42 12 Straits Settlements Law Reports 120, 148. common law his marriage is invalid
120, 152. 47 The dissent by Sercombe-Smith J is and the issue illegitimate. Further, the
43 Re Goods of Lao Leong An, Deceased almost unbelievable in its obtuseness. Chinese are polygamous: the courts
(1867) 1 SSLR 1. See above n. 21. He held that »unions contracted by here cannot recognise polygamy«.
44 See above n. 31. Chinese British-born subjects domi- These statements are also incorrect
45 It will be noticed however (see above, ciled within the Straits Settlements statements of common law.
and the text to n. 50 below) that the are governed by the English common 48 Leong (1999).
registrar had in fact recognised the law, and a marriage to be valid at
intermediate status of secondary common law must be celebrated in
wives with his finding of bigamy the presence of an episcopally
in relation to an attempted second ordained clergyman. Unless a
marriage to a primary wife. Chinese British born subject so

150 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

and English law concepts. […] Even when pre- eye of the law here the women merely declared
existing standards of the Chinese community and concubines will have no legal rights at all to
not of English tradition were recognised, they had maintenance or any provision, that they may be
to be hammered into common law form, for the turned adrift to starve and that their children may
judges were extremely suspicious of foreign jural be regarded by the law as bastards«.
concepts.« 49 In fact, the situation of Chinese women and
Granted that the legal pluralism approach was girls in Singapore was dire enough for the govern-
not, on all the precedents, open to the court, it is ment to establish a Chinese Protectorate primarily
nonetheless interesting to speculate how the mat- for their protection. 51 The fact is that many wom-
ter might have turned out under a »law-popula- en and girls were trafficked for prostitution or to
tions« approach. As we have seen, this approach become concubines, and lived (and often died
would justify treating the matter simply as one of young) in appalling conditions in Singapore’s
Chinese customary law – native law for native Chinatown district. 52 And the taking on of »sec-
cases. While it might seem more in accordance ondary wives« did not necessarily conform with
with justice and perhaps the legitimate expectation the customary notion, as many Chinese will have
of the Chinese community to allow Chinese cus- left a primary wife in China and kept a local
tom, rather than English law, to operate in cases woman as in effect another primary wife and head
involving Chinese parties (in family and succession of his household. 53 Thus the court’s decision,
matters at least), the social reality might in fact while inevitably open to various objections along
suggest otherwise. Under Chinese customary law the lines of creating monstrosity, had at least the
none of the women would have been entitled to merit of affording some subsistence to women who
any share of the estate, because such law simply did would otherwise likely be at the mercy of forces
not recognise female property rights in the first beyond their control. The three secondary wives of
place. Kenneth Wee summarises Chinese custom- Mr Choo would certainly not have had any sub-
ary law in the following terms: sistence but for the court’s decision, and this
probably explains their resort to the culturally
Under Chinese law and custom (again, with unfavoured route of litigation in a foreigner’s
local variations) the property of a deceased went court. 54
to his sons in equal shares (with the eldest son We can also ask, how relevant is it that
getting a larger share to aid him in the duty of Mr Choo, like all other inhabitants of Singapore,
performing family ancestral rituals). The wid- could have made a will if he had wanted to? This
ows were entitled to be maintained so long as possibility was essentially not open to him under
they remained widows. Unmarried daughters Chinese custom. 55 We will never know what his
were also entitled to be maintained by their expectations were, but presumably as a prominent
brothers, and to a dowry when they married. and wealthy Chinese dealing with foreigners he
Married daughters were entitled to nothing. 50 would have been aware in general terms of the
consequences of making and not making a will.
As Acting Chief Justice Law in the Six Widows’ But if we consider the application of Chinese
case said: »[t]he result [sc. of disallowing the claims customary law as a mercy, we should note that
of the secondary wives] I think will be that in the the lack of female property rights could not on the

49 Wee (1974) 77. tudes were towards litigation. Con-

50 Wee (1974) 70. fucianism was very much against liti-
51 Turnbull (2009) 101–102. gation, and culturally it is not likely
52 Foo (2020). that »washing family dirty linen in
53 Wee (1974) 78. Wee goes so far as to public« would have been approved of,
say that »the court’s elevation of the but even the foreigners’ court had its
tsip to the status of an English wife, far attractions when it provided a real
from being a bad interpretation of possibility of redress in extremis. The
Chinese customary law was in fact a Straits Law Reports actually contain
progressive incorporation of new many Chinese family cases.
Chinese custom.« 55 Wee (1974) 70–71.
54 A larger question, beyond the scope
of this paper, is what Chinese atti-

Andrew James Harding 151

Rg 32 2024

assumption of application of Chinese customary effect to Muslim law but not to Chinese law? What
law be rectified by will. Advocates of legal plural- exactly was the point of this?
ism need therefore to consider that bringing the In his judgment in the Six Widows’ case, Acting
Chinese under English law had some advantages as Chief Justice Law addresses the position in some
well as disadvantages, while recognising Chinese detail, and implies that the position should be (at
custom seems simply to create many disadvan- common law, at least) no different.
tages, other than the fact of its familiarity to the
Chinese. Then we have several cases which seem to me to
We could of course answer the dilemma by show that polygamous marriages amongst Mo-
asking what outcome would have had the support hamedans were recognized before the Mohame-
of most of the Chinese community in Singapore. dan Marriage Ordinance of 1880, though perhaps
As we shall see, Chinese customary marriage and it is not always clear whether such marriages were
other social practices exhibited a high degree of recognized in virtue of the passages of the Letters
diversity, and there is no reason to assume that the Patent or whether such marriages were recog-
Chinese community had a single opinion on the nized on the principles laid down by Sir Benson
merits of Chinese customs. We can only judge by Maxwell in Regina v Willans, which I understand
the findings of the Chinese Marriage Committee, to be, that the law of England will here ex
established in 1925 (its report is discussed in the comitate or ex debito justitiae recognize polyga-
next section), which appear to indicate a wide- mous marriages when such are valid according
spread belief that the government should not to the religions or usages of the parties, be they
interfere in Chinese marriage matters, which were Mohamedans, Chinese or others […]. 57
best settled by the Chinese people themselves. At
least that seems to have been the view of educated The answer to this, given the legislation of 1880
Chinese males. We do also know that numbers of referred to Acting Chief Justice Law, is, again,
middle-class females demanded legal equality with beyond the scope of this article. But it would
their European counterparts. 56 It is likely, however, appear to lie in the fact that almost all Malays were
that numbers of wealthy men like Mr Choo him- Muslim, and the Straits Settlements were seen as
self would have preferred to maintain their tradi- originally Malay territory, whereas the Chinese
tional privileges; and such men were powerful. were migrants who, by some unspoken premise,
They were on nodding terms with the British must have been attracted to the colony, leaving
governor, some even sitting on the legislative their ancestral villages behind, and therefore were
council and (as in the case of the Chinese Marriage to expect in general terms to be governed by
Committee) government committees. There is of (indeed to have the benefit of) English law. But if
course some force in the argument that the Chi- this was so, it does not feature in the case law.
nese were in some sense entitled, whatever their Rather, it is argued that on a comparative basis the
views might have been, to being dealt with under approach should be similar across British (and even
Chinese custom. After all, Maxwell’s statement French) colonies. 58
that »nowhere is it said that their laws are to be
attended to« was not thought to be true of Mus-
lims. Their law was fully operated in family and III. Chinese Marriages: Empirical Difficulties
succession cases, and nobody seems to have argued
that that should not be the case. However, it is fair The legal-policy difficulties involved in the Six
to ask, why did the common law allow plenary Widows’ case are further and amply illustrated by

56 Chinese Marriage Committee, Straits Law even indulges in comparative free in the French Colony and in
Settlements, Report No 51/1926, law to point out that the »neigh- China, hardships which I think in
para. 27. bouring« Frenchy colony of Cochin- view of the several passages of the
57 12 Straits Settlement Law Reports China recognised Chinese marriages Letters Patent to which I have re-
159–160. as polygamous (at 150, and again at ferred, if on no other grounds, it
58 On this, see Wee (1974) 75, who also 163). To fail to recognise these mar- certainly was never contemplated
points out that the courts in Hong riages would, he argues, »inflict on that they would have to undergo«.
Kong leant much more in favour of the Chinese community hardships
Chinese custom. Acting Chief Justice from which I think they appear to be

152 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

the debate about Chinese marriages. The difficulty born in the Straits and those born in China. The
in ascertaining the law was an issue that featured Committee’s initiating statement that the matter
prominently in the case itself, which was one of was extremely complex 61 is highly convincing. In
several that encouraged the judges to seek assis- addition to the diversity already indicated, prac-
tance from the government in creating a measure tices in China varied not just from province to
of certainty around marriage laws. Chief Justice province but from district to district; and there
Murison’s reaction to the evidence in a 1926 case is were 35 provinces during that tumultuous period
a typical judicial response of the time: of the early Chinese republic. A new form of
monogamous marriage by certification was emerg-
Before leaving the question of the so-called ing in China. In addition, Chinese marriage prac-
usual and essential ceremonies for the wedding tice was changing over both time and geography,
of a principal wife, I would like to observe that and many Chinese had lived in the Straits Settle-
the whole matter is most unsatisfactory and ments for generations. Some (called the »Baba«
vague. There seems to be no real and final Chinese) had even lost the ability to speak Chinese,
authority at all as to what are the actual essen- conversing in a mixture of English and Malay. 62
tials of the marriage: A consideration of various Opinion varied over whether divorce should be
textbooks – Van Mollendorf and Jamieson – and allowed (Straits-born Chinese were more in favour
a number of decided cases leads me to the of it than those born in China), as well as over what
conclusion that these ceremonies differ in differ- grounds of divorce should be allowed (custom
ent parts of China and again differ here in virtually prevented divorce). Interestingly enough,
Singapore. The expert witness Mr Stirling [offi- one pressure group called the Chinese Ladies of
cial Protector of Chinese] was quite vague as to Penang, as well as Chinese ladies generally who
the essentials, so are Van Mollendorff and Ja- had been educated in English schools, were in
mieson and the expert witnesses. 59 favour of monogamy and registration, and allow-
ing divorce as a means of preventing concubinage.
As a result of such concerns, in 1925 the govern- So were »a limited number of Chinese gentlemen
ment established a Chinese Marriage Committee to of advanced views«. Yet the Straits Chinese British
Association and most male respondents were
report on the customs, rites and ceremonies, against registration and strong views were ex-
relating to marriages observed by the Chinese pressed that the government should not interfere
residents in the Straits Settlements, and to sub- in Chinese marriages. The Committee considered
mit, if thought desirable, proposals as to what that legislated direct registration of marriages
forms of ceremonies should constitute a valid would be ignored by Chinese people. 63
marriage and as to the registration of such The Committee reported in 1926 with some
marriages. 60 rather complex proposals for legislating the registra-
tion of Chinese marriages (principally »modern«
The Committee was the first Straits Settlements marriages, but with provision for »old« marriages
government committee to include »Chinese la- too). 64 However, they were unable to answer the
dies« (three of them), and had also eleven Chinese question as to the requirements for a valid marriage:
men, and was chaired by the Acting Secretary for
Chinese Affairs, the only non-Chinese member of We have found it impossible to submit pro-
the Committee. posals for legislation as to what forms or cere-
The Committee interviewed a number of Chi- monies should constitute a valid marriage, be-
nese witnesses from five dialect groups (referred to cause the evidence disclosed the fact that there
as »tribes«), from the three colonies, both those are no essentials for marriages in the old style

59 Woon Kai Chiang vYeo Pak Wee [1926] 61 Ibid., para. 13.
1 Straits Settlements Law Reports 27, 62 Chia (1980).
33. See, further, Freedman (1962). 63 Chinese Marriage Committee, Straits
60 Chinese Marriage Committee, Straits Settlements, Report No 51/1926,
Settlements, Report No 51/1926, para. 42.
para. 2. 64 Ibid., para. 58 ff.

Andrew James Harding 153

Rg 32 2024

common to all the Districts of South China or emphasizing the emergent notion of a »modern
to the locally born descendants of emigrants marriage«. On this matter the position, as it even-
from those Districts, while the new form of tually turned out, but only 35 years later, became
marriage does not require any particular clear. In 1958 Singapore became a self-governing
form. 65 colony. In 1959 the first elections on a general
franchise including women were held, the People’s
It may also be, as Kenneth Wee suggests, that Action Party under Lee Kuan Yew sweeping to an
the common resort to community mediation of impressive victory, partly on a platform of address-
family disputes also tended to prevent the emer- ing women’s rights: women were by now a highly
gence of any clarity in the customs themselves, 66 significant work force. 70 The PAP fulfilled its
adding to official frustration; although if this was promise by introducing a bill for a Women’s
so, it was not mentioned by the Committee. Charter in parliament in 1960, which was passed
To make matters even more complicated there into law in 1961. This law resolved the position on
was naturally an emerging trend of intermarriage marriage law with a high degree of consensus and
between dialect groups, and even between Chinese radical reform. 71 Henceforth, marriage, except for
and non-Chinese. 67 As a result, the courts had little Muslims, would be monogamous and only legally
alternative to reducing the legal requirements for a recognised via registration. Principles of genuine
Chinese marriage, and by extension, all marriages consent, equal divorce grounds, including no-fault
other than Muslim marriages, to the lowest com- divorce, fair division of matrimonial property and
mon denominator, which was merely intention, or custody of children, and ages of majority, applied.
consent. 68 Obviously, such a standard was both One female legislator, Chan Choy Siong, set out
vague and highly fact-based. 69 Relevant evidence the grievance and its remedy in stark terms, which
might be performance of certain ceremonies, pub- seem to nail the issue once and for all:
lic recognition, cohabitation, and producing and
raising children together. This standard had per- Men take women as pieces of merchandise. The
haps the single advantage that it was applicable to inhuman feudalistic system has deprived wom-
the broad range of marriage practices evident in en of their rights. In a semi-colonial and semi-
the population. But it was neither efficient nor feudalistic society, the tragedy of women was
predictable in terms of legal certainty. The strong very common. Men could have three or four
implication was that marriage registration was the spouses. Men are considered honourable, but
only answer. women are considered mean. It was common in
those days to regard having one more female in
a Chinese family as being very despicable.
IV. Legislation and the Rout of Custom Women in our society are like pieces of meat
put on the table for men to slice. […] The
While it is as difficult now as it was then to previous evil custom will vanish with the com-
formulate a reasoned response to the issue of ing into operation of this Charter. 72
identifying a Chinese marriage, the issue can be
finessed by considering longer-term preferences As a result of this development, from this point
and outcomes. The report of the Chinese Marriage Singapore marriage law resembled English law
Committee actually supports such an approach, almost exactly. In view of the agonising over

65 Ibid., para. 69. 70 Tan (2016). at 164, the Muslim law exception was
66 Wee (1974) 77; Lee (1988). 71 Leong (2008). carved out by statute in 1880, but
67 See Isaac Penhas v Tan Soo Eng [1953] 72 Singapore, Legislative Assembly. he offers no explanation as to why
AC 304, where the Privy Council held Debates: Official Report, vol. 12, this exception was made, merely
that a Jewish man could contract a 6. April 1960, col. 442–444. The commenting that »the continued
monogamous marriage with a customs abolished by the Charter of evolution of Islamic law in a secular
Chinese woman. course included those of other groups country like Singapore is very much
68 Leong (1999); Wee (1974) 79. than the Chinese, but not Muslims. dependent on the mutual respect the
69 It might be said that these descrip- See, further, Freedman(1968). And Muslims and the non-Muslim com-
tions would not be untypical of the for Muslims, see Nizam bin Abbas munity have for each other« (187).
common law in any event. (2012); as the author points out

154 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
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customary marriages, legal pluralism and the com- tees. 75 This study addresses similar issues to the Six
mon law, this is quite ironical. The Women’s Widows’ case, in the sense that in the judicial
Charter was enacted just three years after self- reasoning process the common law reveals flexi-
government and just two years before the achieve- bility at the precise interface between common law
ment of independence from Britain, as Singapore and the Asian context.
joined Malaysia in 1963, and just four years before Professor Chen-Wishart travelled from Oxford
it left that federation on 9 August 1965, to become to Singapore to teach the law of contract. Her
a fully independent sovereign republic. assumption was that the law of contract in Singa-
Of course, the rout of custom 73 could not be pore was more or less identical to English law, and
achieved so easily. While registration is the legal that local cases could simply, if necessary, be sub-
test of marriage, the law does not of course prevent stituted for English ones. This was not only because
couples from observing whatever customary cere- of the general reception of English law as described
monies are desired – they simply have no legal above, but because from 1878 to 1993 there was a
consequences. In this sense the law achieves the continuing reception 76 of English mercantile law.
best of both (ancient and modern) worlds. For That is to say that in Singapore a mercantile
example, there is evidence that couples often regis- contract case would, by statute, be decided in
ter their marriage in order to get on the housing exactly the same manner as it would be in England
list, and are only known to be married when they at the relevant date. This continuing reception was
get to the top of the list, moving into a new ended only by the passing of the Application of
apartment, and going through applicable custom- English Law Act in 1993, 77 a measure that was in
ary processes. 74 And of course, the law was only essence designed to address the legal implications
prospective, meaning that the courts would still of the United Kingdom joining the European
have to consider customary marriages for many Union, in the light of a danger of European law
years to come. being applicable to Singapore, as it were by acci-
dent resulting from the coincidence of continuing
reception of English law and the European Com-
V. Contract and the Fate of English Law munities Act 1972 (UK).
In English law there is a concept of undue
Having outlined the resolution of the problem influence, under which, if a person obtains a
of Chinese marriages, we can now address the guarantee of a loan, the relationship between the
broader question of whether in other contexts borrower and the guarantor may be such that
too the common law system has encountered undue influence over the latter by the former
problems when interfacing with the Asian contexts may be found to vitiate the guarantee. Professor
discussed in this article. Chen-Wishart discovered, looking at English and
With this in mind we can move to commercial Singapore cases on undue influence, a paradox
contexts, in which English law was the subject of that, while the Singapore judges ostensibly fol-
continuing and unmodified reception. This section lowed English cases, the actual outcomes, in terms
therefore presents a further brief case study, in- of application of law to the facts, were unexpected
spired by an article by Professor Mindy Chen- given the English law background. What the cases
Wishart, published in 2014, which explores the seemed to reveal was a reluctance on the part of the
issues of legal transplantation of the common law, judges to find undue influence in cases where a
Confucian values, and undue influence in the law borrower’s family member had acted as guarantor
of contract in Singapore relating to family guaran- for a bank loan. The judges referred to consider-

73 As Freedman(1968) has called it.

74 Tan (1999).
75 Chen-Wishart (2014).
76 Phang (2005) 12, uses a distinction
between »general« and »specific«
reception. See also Phang / Soon
(1985).
77 Phang (2005) 12 ff.

Andrew James Harding 155

Rg 32 2024

ations (such as that the father was acting in the Having said that, it does not appear that the
broad interests of the family) that militated against decision in the Six Widows’ case is obviously
a finding of undue influence. This tendency, she wrong. Unlike some more rigidly common-law
found, was attributable to the implicit application oriented decisions noted above it recognised Chi-
of Confucian values to the given fact situations. nese polygamy in a way that paid attention to
Her conclusion is a positive one. The way in social needs. The criticism that it did not pay
which the judges used Confucianism was simply careful attention to Chinese custom, which was
part of a well-known phenomenon, namely the clearly a declining asset, is not quite made out.
adaptation of transplanted law to social circum- When Singapore had the opportunity to make its
stances. The conclusion is plausible, as we can find own decisions on marriage and divorce law, it
a tendency for judges in Singapore to use Con- opted to modernise the law, as did many other
fucian values in applying common law principles jurisdictions at a similar period, and it did so along
to local fact situations in other contexts too. For English lines. In this way the Chinese Marriage
example, in England it is considered that in rela- Committee was around forty years ahead of its
tion to defamation by politicians, they are expected time.
to have a thick skin, as severe criticism is part of the The case studies presented here lead to a con-
political process in a thriving democracy. 78 In clusion that, despite the general lack of attention of
Singapore, on the other hand, the judges have colonial judges to the local context, the common
expressly used the Confucian concept of the junzi law has successfully transplanted to Singapore. As
(the upright Confucian gentleman) to explain why former Supreme Court judge and law professor
it is important for Singapore politicians to be able Andrew Phang states, »English law is the founda-
to protect their reputations, especially when pre- tion of the Singapore legal system«. 80 After two
vailing political ideology is firmly against corrup- hundred years of common law in Singapore there
tion, mendacity, and failure to protect public is no sign that the undoubted social prevalence and
interests over private ones. 79 persistence of Asian societal norms presents a
This study adds to our narrative in an important danger to the common law inheritance. It is of
way. It illustrates the fact that judicial reasoning course true that in some areas Singapore law
under common law principles can be an important diverges greatly from that of England. Examples
factor in the adaptation of law to society – even include the minimal application of judicial review;
after two hundred years of adaptation. the abolition of jury trial; the adoption of the
Torrens system for registration of land rights in
preference to English law; and no doubt many
VI. Conclusions other issues. 81 Yet what is striking is not the degree
of divergence but the degree of continuing exhibi-
The lack of attention of colonial judges to the tion of typical common law tropes. I refer here to
local context did not serve to enhance the reputa- institutions (courts, legal profession, legal educa-
tion of the common law in Singapore. A far better tion); substantive law (even family law, as ex-
policy might well have been to trade off pluralism plained here); and legal methods (the doctrine of
in personal law matters such as marriage for precedent, judicial reasoning, modes of advocacy).
certainty in transactional matters such as contracts, In fact, Singapore is not only a fully subscribed
and such policy would have been entirely consis- member of the common-law family, but contrib-
tent both with the 1826 Charter and the clear utes to continuing development of the common
preferences of society. law, as in a 2017 case which recognises the depri-

78 Phang (2005) 19 ff.

79 Sim (2011) 324–325.
80 Phang (2005) 7.
81 Phang (2005) 7 mentions a number
of these.

156 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom
 Recherche research

vation of genetic affinity as ahead of damages at Whether something similar can be said of the
common law. 82 Critical to this success has been the diffusion of common law in other Asian jurisdic-
role of the judiciary in making astute use of tions is of course a matter for further investigation.
common law techniques of interpretation, as in
the undue influence cases. 

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158 The Diffusion of Common Law in the Straits Settlements: »The Six Widows’ Case« and the Rout of Custom